FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62778/00 by Franz GRASSL against Austria

The European Court of Human Rights (First Section) , sitting on 24 October 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged on 7 November 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Franz Grassl, is an Austrian national, who was born in 1975 and lives in Kallham, Austria. He is represented before the Court by Mr. Postlmayr, a lawyer practising in Mattighofen, Austria.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

On 1 July 1995 the applicant caused an road accident.

On 17 August 1995 the Braunau District Authority ( Bezirkshauptmannschaft ) summoned the applicant as he was suspected of having driven a car in a state of drunkenness. However, he did not obey the summon. On 4 October 1995 he commented on the suspicion against him.

On 23 January 1996 the District Authority issued an order imposing a fine of ATS 10,000 on the applicant for having driven his car in a state of drunkenness. A test carried out had shown that the applicant had had an alcohol level in his breath of 0.51 milligrams per litre (the legal limit is 0,25 milligrams per litre).

On 12 February 1996 the applicant, who was assisted by counsel of his own choice, filed an appeal.

On 16 September 1996 the Upper Austria Independent Administrative Panel ( Unabhängiger Verwaltungssenat - “the IAP”) served a summon for a hearing on 23 October 1996 on the applicant’s counsel.

On 15 January 1997 the IAP, after having held a hearing on 23 October 1996, dismissed the applicant’s appeal.

On 20 February 1997 the applicant lodged a complaint with the Constitutional Court ( Verfassungsgerichtshof ).

On 10 October 1997 the Constitutional Court quashed the IAP’s decision. It found that the decision was based on an unconstitutional provision which had provided that Section 20 of the Code of Administrative Offences ( Verwaltungsstrafgesetz ) did not apply in road-accident proceedings. Section 20 provides that, if the extenuating circumstances outweigh the aggravating circumstances, the imposed fine may be reduced to the half of the statutory minimum fine.

On 19 November 1997 the IAP, sitting with a single member, dismissed the applicant’s appeal. It found that the requirements of Section 20 of the Code of Administrative Offences were not met.

On 12 January 1998 the applicant lodged a complaint with the Constitutional Court against this decision. He stressed that the IAP had failed to hold a hearing in the second set of the proceedings on his appeal despite his request in his appeal of 12 February 1996 and that the decision had not been pronounced in public.

On 25 February 1998 the IAP submitted its observations in reply . It argued that the applicant had waived his right to a public hearing and a pronouncement in public as he had agreed at the end of the hearing of 23 October 1996 that no hearing for the pronouncement of the decision should be held.

On 27 August 1998 the applicant amended his complaint. He stressed that the composition of the IAP was unlawful as that member had already decided on his appeal in the first set of the proceedings. Therefore, he challenged that member of the IAP for bias.

On 1 December 1998 the Constitutional Court refused to deal with the case for lack of prospects of success.

On 19 March 1999 the applicant requested that the case be transferred to the Administrative Court and on 28 May 1998 he supplemented his complaint. On 14 July 1999 the IAP submitted its observations in reply .

On 31 March 2000 the Administrative Court dismissed the applicant’s complaint. It found that there was no indication of bias of the member of the IAP. As regards IAP’s failure to hold a hearing in the second set of the proceedings it found that the applicant had failed to file a new request to hold a hearing. This decision was served on 2 May 2000.

B. Relevant domestic law

Section 51e of the Code of Administrative Offences ( Verwaltungsstrafgesetz ), as far as rel e vant, reads as follows:

“... 2. In case the appeal is expressly limited to points of law or concerns exclusively the severity of the sentence imposed, a hearing must only be scheduled if this is e x pressly requested in the a p peal.

3. A hearing need not be held if the parties expressly waive their right to a hearing. The parties may express such a waiver up to the b e ginning of the hearing. ...”

Section 20 of the Code of Administrative Offences ( Verwaltungsstrafgesetz ), as far as rel e vant, reads as follows:

“If the extenuating circumstances considerably outweigh the aggravating circumstances, or if the accused is under age, the minimum fine may be reduced to the half of the amount.”

COMPLAINTS

The applicant complains under Article 6 of the Convention about the length of the proceedings. Further, he complains that he had not been summoned to the hearing personally and, therefore, he had no possibility to defend himself. Further he complains that one member of the IAP was biased as he had decided on his appeal in the first and second set of the proceedings and that the IAP failed to pronounce its decision in public.

Finally, he complains that the IAP failed to hold a hearing in the second set of the proceedings. He submits that this would have been the first possibility to put forward his arguments that the requirements of Section 20 Code of Administrative Offences had been met.

THE LAW

1. As regards the complaint under Article 6 of the Convention about the lack of a public hearing, the Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint.

It is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

2. The applicant complains under Article 6 of the Convention about the length and the unfairness of the proceedings. Article 6 of the Convention, insofar as relevant, reads as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal. Judgment shall be pronounced publicly ...

3. Everyone charged with a criminal offence has the following minimum rights: ...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... ”

The Court observes that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1. For this reason, it considers it appropriate to examine this complaint under the two provisions taken together ( Artner v. Austria judgment of 28 August 1992, Series A no. 242-A, p. 10, § 19; Pullar v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, § 45).

a) The applicant submits that he was not summoned to the IAP’s hearing and that he had no possibility to defend himself.

However, the Court observes that the applicant was assisted by counsel of his own choice and that the summon was duly served on him. The counsel, who attended the hearing before the IAP did not request that the applicant be summoned personally. In such circumstances the Court finds that the applicant’s rights under Article 6 of the Convention were not infringed in this respect ( Jancikova v. Austria (Dec.), no. 56483/00, 4.7.2002).

b) As regards the complaint about the length of the proceedings, the Court notes that the proceedings started at the latest on 17 August 1995 when the applicant was summoned by the Braunau District Authority and were terminated on 2 May 2000 when the Administrative Court’s decision was served. Thus, they lasted four years, eight months and two weeks.

The Court recalls that the reasonableness of the length of proceedings must be assessed in the light of the particular circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what was at stake for the applicant in the litigation (see for instance Humen v. Poland [GC], no. 26614/95, 15.10.99, § 60).

The Court finds that the first part of the proceedings was of a certain complexity as the Constitutional Court had to decide on the constitutionality of the applicable law. As regards the conduct of the parties, the Court finds that no specific delays can be attributed to the applicant. As regards the conduct of the authorities the Court notes that the proceedings at issue were dealt with at four levels of jurisdiction and the case was twice before both the IAP and the Constitutional Court. It finds that, on the whole, the Austrian Courts dealt expeditiously with the applicant’s case.

Having regard to these circumstances the Court considers that the overall duration of the proceedings at issue can be regarded as “reasonable”.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

c) As regards the complaint about the alleged bias of the member of the IAP, the Court recalls that there is no general rule resulting from the obligation to be impartial that a superior court which sets aside an administrative or judicial decision is bound to send the case back to a different jurisdictional authority or to a differently composed branch of that authority ( Eur . Court H.R., Ringeisen judgment of 16 July 1971, Series A No. 13, p. 40, § 97; Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, p. 28 § 73; appl . no. 15975/90, Dec. 1.7.91, DR 71, p. 245, O.N. v. Bulgaria, (Dec.), 35221/97, 6.4.2000). Further it recalls that the mere fact that the same judge had decided on the applicant’s appeal in both parts of the proceedings, does not objectively justify any fears as to the impartiality on his or her part (see mutatis mutandis the Diennet v. France judgment of 26 September 1995, Series A no. 325-A, p. 16, § 38; Ringeisen v. Austria judgment of 16 July 1971, Series A no. 13, p. 40, § 97, Thomann v. Switzerland judgment of 10 June 1996, Reports 1996-III, p. 819, § 63).

Under the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary (cf. Bulut v. Austria judgment of 22 February 1996, Reports of Judgments and Decisions 1996-II, p. 356, § 32; Padovani v. Italy judgment of 26 February 1993, Series A no. 257-B, p. 20, § 26). However, the applicant failed to submit any argument to substantiate the alleged bias of the member of the IAP.

It follows that also this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

c) As regards the IAP’s failure to pronounce its decision in public the Court observes that the Court has several times had occasion to rule on the Article 6 § 1 requirement that judgments must be pronounced publicly, holding that “in each case the form of publicity to be given to the ‘ judgment ’ under the domestic law of the respondent State must be assessed in the light of the special features of the proceedings in question and by reference to the object and purpose of Article 6 § 1” (see the Pretto and Others judgment cited above, p. 12, § 26 in fine). In the Sutter v. Switzerland case (see the judgment of 22 February 1984, Series A no. 74, pp. 14–15, § 34) it held that public delivery of a decision of the Military Court of Cassation was unnecessary, as public access to that decision was ensured by other means, namely the possibility of seeking a copy of the judgment from the court registry and its subsequent publication in an official collection of case-law.

In the present case, the Court observes that all the decisions of the Upper Austria IAP are published on the internet. The Court considers that, having regard to the above mentioned case-law, the public access to the decision at issue was thereby properly ensured.

It follows that also this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the lack of oral hearing;

Declares the remainder of the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President